Smith v. Nicholson
| Decision Date | 19 June 2006 |
| Docket Number | No. 05-7168.,05-7168. |
| Citation | 451 F.3d 1344 |
| Parties | Ellis C. SMITH, Claimant-Appellee, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Federal Circuit |
Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for claimant-appellee. Of counsel was Donald E. Purcell.
Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellant. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
The Department of Veterans Affairs (the "DVA") appeals from the decision of the United States Court of Appeals for Veterans Claims (the "Veterans Court") reversing in part, vacating in part, and remanding the decision of the Board of Veterans' Appeals (the "Board"), holding, inter alia, that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, DC 6260 require the assignment of dual ratings for bilateral tinnitus. Smith v. DVA, 19 Vet.App. 63 (2005). Because the Veterans Court erred in not deferring to the DVA's interpretation of its own regulations, we reverse and remand that portion of the court's decision. No other aspect of the court's decision is on appeal.
Smith served on active duty in the U.S. Army from March 1966 to March 1969. A report from an April 1995 VA audiological examination revealed that Smith had tinnitus. In October 1995, a VA regional office ("RO") found that Smith's tinnitus was service connected. However, the RO assigned a noncompensable disability rating to Smith's tinnitus because the evidence did not demonstrate that the tinnitus was "persistent" as required by 38 C.F.R. § 4.87, DC 6260. In April 1999, the RO issued a supplemental statement of the case reaffirming that Smith's tinnitus was not persistent. Prior to June 10, 1999, DC 6260 (hereinafter "pre-1999 DC 6260") provided for a 10% disability rating for a veteran with tinnitus if the evidence demonstrated that the tinnitus was "persistent as a symptom of head injury, concussion, or acoustic trauma." On June 10, 1999, DC 6260 (hereinafter "post-1999 DC 6260") was amended to provide a 10% disability rating for tinnitus if the evidence demonstrated that the tinnitus was "recurrent." 38 C.F.R. § 4.87, DC 6260 (2000).1 The requirement that tinnitus must be a "symptom of head injury, concussion, or acoustic trauma" was deleted. Consequently, Smith appealed the RO's decision, asserting that his service-connected tinnitus should be evaluated under the post-1999 DC 6260, which requires that his tinnitus be "recurrent," rather than "persistent."
In a December 2000 decision, the Board considered Smith's claim under both the pre-1999 DC 6260 and the post-1999 DC 6260 regulations. With regard to pre-1999 DC 6260, the Board affirmed the RO's decision that Smith's tinnitus was not "persistent," which the Board defined as "insistently repetitive, or continuous, tenacious, or enduring." Thus, the Board determined that Smith was not entitled to a 10% disability rating prior to June 10, 1999. With regard to post-1999 DC 6260, the Board determined that Smith's tinnitus was "recurrent" and granted him a 10% disability rating, effective June 10, 1999. Smith appealed from the Board's decision, alleging that the evidence demonstrated that his tinnitus was "persistent" under pre-1999 DC 6260 and that the Board misinterpreted both pre-1999 and post-1999 DC 6260 by failing to award a separate 10% disability rating for service-connected tinnitus in each ear.
On June 10, 2003, the Veterans Court reversed in part, vacated in part and remanded the Board's decision. Smith v. Principi, 17 Vet.App. 168 (2003). First, the court reversed the Board's conclusion that Smith's tinnitus was not "persistent" as required by pre-1999 DC 6260, concluding that the Board's decision was "arbitrary, capricious, and an abuse of discretion," and remanded for assignment of a 10% disability rating and determination of an appropriate effective date. Second, the court vacated the portion of the Board's decision that denied two disability ratings for Smith's service-connected tinnitus, one for each ear, and remanded for the Board to consider whether a single 10% rating is appropriate for bilateral tinnitus under 38 C.F.R. § 4.25(b), which provides that "disabilities arising from a single disease entity. . . are to be rated separately." Id.
The DVA moved without opposition to vacate the Veterans Court's decision and remand the case for further proceedings consistent with this court's recent decision in Wanner v. Principi, 370 F.3d 1124 (Fed.Cir.2004). In Wanner, we had reversed a Veterans Court's decision, concluding that it lacked jurisdiction to review the content of a rating schedule. Because the Veterans Court in this case relied heavily on its decision in Wanner, we reversed the court's determination that it had jurisdiction in this case and remanded for further proceedings consistent with our decision in Wanner. Smith v. Principi, 108 Fed.Appx. 628 (Fed.Cir.2004).
On remand, the Veterans Court first held that it had jurisdiction to review both the Board's interpretation of the term "persistent" in pre-1999 DC 6260 and whether § 4.25(b) permits dual ratings for tinnitus. The Veterans Court reasoned that its review of regulations DC 6260 and § 4.25(b) did not involve evaluating the content of a rating schedule, but rather an interpretation of language in the regulations subject matter over which the Veterans Court has jurisdiction. The Veterans Court then vacated the Board's decision with regard to the term "persistent" under pre-1999 DC 6260 and remanded to the Board for an explanation of its interpretation of the term "persistent." With regard to the question whether pre-1999 and post-1999 DC 6260 permit dual ratings for tinnitus, the court reversed the Board's decision that DC 6260 did not authorize the assignment of two 10% ratings for bilateral tinnitus and determined that regulations § 4.25(b) and DC 6260 required such dual ratings for bilateral tinnitus. The Veterans Court observed that the DVA's interpretation of its regulations, DC 6260 and § 4.25(b), conflicted with their plain meaning. The Veterans Court noted that DC 6260 lists tinnitus as a "disease of the ear" and that § 4.25(b) provides for a separate rating for each service-connected disability arising from a single disease, unless otherwise provided. Thus, the Veterans Court determined that a "plain reading" of those regulations taken together results in a "rating of 10% for each ear affected by a single case of tinnitus." Smith v. DVA, 19 Vet.App. at 75. The Veterans Court then remanded for the Board to consider whether Smith had bilateral tinnitus, and, if so, for assignment of a dual rating.
The DVA timely appealed the Veterans Court's decision regarding whether the regulations permit a dual rating for bilateral tinnitus, and, as we explain below, we have jurisdiction pursuant to 38 U.S.C. § 7292(a).
The scope of our review of a Veterans Court's decision is limited by statute. 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with respect to the validity of "any statute or regulation ... of any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision." This appeal involves the Veterans Court's interpretation of certain DVA regulations, and therefore we normally would have jurisdiction to consider that interpretation under § 7292(a). We review interpretation of regulations by the Veterans Court de novo and may set aside any regulation or interpretation of a regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observation of a procedure required by law. 38 U.S.C. 7292(d)(1); Wanner, 370 F.3d at 1128.
As an initial matter, however, we must consider whether we have jurisdiction to hear this appeal at this time. We conclude that we do and agree with the DVA that, even though the Veterans Court remanded the case to the Board, we have jurisdiction over this appeal under the principles set forth in Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002).2 Generally, we do not have jurisdiction to review non-final judgments. Adams v. Principi, 256 F.3d 1318, 1320 (Fed.Cir.2001). We have determined that a remand order from the Veterans Court is not considered a final judgment and hence is usually not appealable. Id. In Williams, however, we set forth an exception to the general rule that non-final decisions are not reviewable. As we explained in Williams:
We will depart from the strict rule of finality when the Court of Appeals for Veterans Claims has remanded for further proceedings only if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.
275 F.3d at 1364 (footnotes omitted).
With regard to the first condition, the Veterans Court interpreted regulations § 4.25(b) and DC 6260, concluding that they...
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